When Does a Criminal Defendant Have the Right to a Lawyer?

Posted By R Tamara de Silva || 18-Jan-2017

Most people know from popular TV shows that the defendant in a criminal
case has the right to counsel. But when does this right come into play,
and what does it really mean?

The Right to Counsel’s Constitutional Origins

A criminal defendant’s right to a lawyer derives from both the Fifth
[1] and Sixth [2] Amendments to the U.S. Constitution. Only the Sixth
Amendment, however, specifically lists the right to the assistance of
counsel for the accused in a criminal proceeding. But courts have acknowledged
a right to counsel arising out of the Fifth Amendment’s privilege
against self-incrimination, concluding that a lawyer’s presence
may be necessary to help an unwitting defendant avoid giving incriminatory
answers under police questioning.

The Fifth Amendment Right to Counsel

The Fifth Amendment’s right to a lawyer is triggered during a criminal
investigation, when police interrogate a suspect in custody. Whether a
defendant is entitled to an attorney in any particular situation depends
on the answers to two questions:

* Is the defendant in custody?

* Is the defendant being interrogated?

The answers to these questions are not as obvious as they may seem at first
glance. If a suspect has been arrested, then she is in custody. But she
could still be legally in custody without being in jail, if she has been
deprived of her freedom of action in a significant way. She could be in
custody in the back of a police car, but she could also be in custody
in her own home or out on the street if a police presence means she cannot
leave. Similarly, while an interrogation includes direct police questioning,
it could also include indirect efforts to goad or trick a suspect into
revealing incriminating information. If being questioned, it is important
to have an attorney present.

If a person is not in custody, officers are free to ask any questions without
a lawyer present and without advising her of her right to an attorney.
However, if a person is in custody and requests counsel, the police must
stop questioning her until counsel arrives. Keep in mind that in a majority
of cases, the police obtain most of the evidence sufficient to charge
a person from questioning that person in custody. As a general rule have
an attorney present.

The Sixth Amendment Right to Counsel

A defendant’s Sixth Amendment right to counsel applies only after
she has been formally charged with a crime. According to the Supreme Court,
any of several actions can constitute the beginning of formal criminal
proceedings, including a preliminary hearing, an indictment, [3] or an
arraignment. [4] While the Fifth Amendment right to counsel requires that
an attorney be present during custodial interrogation if requested, the
Sixth Amendment mandates a lawyer’s assistance during all critical
stages of a criminal proceeding. The courts have identified some of these
critical stages to include:

* A post-indictment lineup or interrogation

* Negotiations for a plea deal

* Trial

* Sentencing

* A first appeal after sentencing.

When a Defendant Can’t Afford a Lawyer

A defendant who can’t afford a lawyer is still entitled to one, because
the right to counsel is so central to the justice system’s fairness.
If a defendant lacks the money to pay an attorney, the court will appoint
one to represent her. Some jurisdictions have public defenders’
offices to provide indigent representation, while some appoint lawyers
in private practice, compensated with public funds.

When Police Violate the Right to Counsel

Any right is toothless without an enforcement mechanism. What happens if
the police continue to question a suspect after she has requested a lawyer?
What if they put a defendant through a lineup without a lawyer present?
Generally, the remedy for violating a defendant’s right to counsel
is for the court to exclude any evidence obtained because of that violation.
For example, if a defendant is identified in a lineup without her lawyer
there, the identification could not be used against her at trial. Similarly,
if detectives induced a defendant to make incriminating statements after
she asked for a lawyer but before that lawyer arrived, those statements
would not be admitted in court. What is more, any evidence found because
of those statements would likely also be ruled inadmissible.

Having skilled counsel on your side in a criminal case can make all the
difference.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.